On June 24, 2013, in Vance v. Ball State University, the U.S. Supreme Court adopted a bright-line standard for defining who a “supervisor” is in Title VII harassment suits. The narrow definition is favorable to employers and brings much-needed clarity to the issue.
The standard for determining whether an employer is liable for the harassing conduct of an employee depends very much on who is the harasser. Liability is much easier for a plaintiff to establish if a supervisor is found to have harassed, as opposed to a non-supervisory co-worker. Before Monday’s decision, however, courts had wrestled with the definition of who actually constitutes a “supervisor” for Title VII purposes.
Now, the Supreme Court has made clear that a “supervisor” under Title VII is an employee who has the power to take tangible employment actions against another. That means a supervisor is someone with the power to hire, fire, promote, reassign to significantly different tasks or cause changes to benefits. An employee who simply directs another co-worker’s day-to-day activities -- such as a working foreman or lead person -- is not a supervisor for purposes of Title VII.
The Court emphatically rejected the less stringent standard that the Equal Employment Opportunity Commission (EEOC) has used in its enforcement guidance, calling that definition “a study in ambiguity.” The EEOC will need to acknowledge the high court’s definition and abandon its current guidance and interpretation in drafting new regulations.
Armed with this clear definition of “supervisor,” employers should protect themselves by reviewing and revising job descriptions to make certain their supervisors’ duties as listed reflect those referenced by the Court to constitute true supervisory status. All supervisors should receive proper training in avoiding and addressing discriminatory harassment in the workplace. “True supervisors” must recognize their duties and obligations to take appropriate actions when confronted with allegations of sexual or other harassment.
Employers Will Benefit from Court’s Strict Standard for Title VII Retaliation Claims
The Supreme Court also handed down another employer-friendly decision on Monday in University of Texas Southwestern Medical Center v. Nassar. Following a string of employee-friendly retaliation cases over the past few years, this decision restores some balance by endorsing a tougher standard for workers bringing Title VII retaliation claims. The Court held that under Title VII, a plaintiff bringing a retaliation claim must show that the adverse employment action (for example, termination or failure to promote) would not have happened “but-for” the employer’s improper, retaliatory motive. Thus, if an employer can establish a legitimate non-retaliatory reason for the adverse employment action at issue, the employer is likely to prevail even if the employee demonstrates some retaliatory behavior by the employer. Previously, lower courts were split on the issue of whether the “motivating factor” standard that Congress adopted for Title VII’s general provisions in 1991 also applied to Title VII retaliation cases, despite the fact that the retaliation provisions remained untouched after the amendments.
Now, the answer is clear. The Court adopted the “but for” standard as to retaliation claims under Title VII because the retaliation portion of the statute failed to express or indicate a standard. As other federal laws -- namely, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and Section 1981 of the Civil Rights Act -- similarly fail to include a standard, it seems likely that the Supreme Court, as currently constituted, would impose the same, more exacting “but for” standard as to these laws as well.
Before Monday, it was unclear whether the plaintiff could prevail in a retaliation case by simply demonstrating that an improper motive was among the employer’s many “motivating-factors,” even if the employer could produce a laundry list of other reasons the worker was terminated. Now, employers are much more likely to prevail earlier in the litigation when legitimate reasons for their employment decisions are well documented.
While this decision may be welcome news for employers, companies must continue to be vigilant to avoid claims of retaliation by those who have pursued recourse under a variety of workplace laws. Bad claims of discrimination, for instance, can lead to good claims of retaliation if a supervisor “punishes” or “ostracizes” an employee for pursuing a baseless charge. Educating and training supervisors and managers is essential to avoid workplace retaliation claims.